New York State’s Rules of Professional conduct contain both aspirational and mandatory dimensions. For the most part, attorneys have accepted the imposition of the mandatory rules without challenge. One of the problematic rules from the perspective of marketing a transactional practice is found in Rule 7.3, which essentially prohibits any form of real-time solicitation of work from potential clients unless the target is a close friend, relative, or a former or existing client. In other words, you cannot approach someone that you know may need specific transactional services in person or over the phone and offer your services (unless you effectively already have a relationship with them).
If one considers the situation of an attorney calling an unsophisticated person who has been in an accident or inherited some money, it is not hard to understand the rationale of Rule 7.3. However, if you consider that this rule would also prevent a tax attorney (say, me, for example) from calling the highly sophisticated CEO of a Fortune 500 company (who would almost certainly have me dumped into the voicemail of someone in the mail room), the potential for abuse is nonexistent.
Consider, then, the recent case of Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010) in which it was established that the Rules of Professional Conduct are subject to constitutional limitations established by the First Amendment.
The challenge in Alexander was focused on certain of New York Sate’s rules which became effective in 2007. Part of the challenge was focused on restrictions on advertising content (use of nicknames and irrelevant images – think lawyers representing space aliens – in ads). To oversimplify a bit, the Second Circuit held that: (1) attorney advertising is speech that is protected by the First Amendment; and (2) New York has an interest that is materially advanced by the challenged rules; but (3) at least with respect to certain of the advertising content rules, the rules were not narrowly tailored enough around the potential harm and as a result were unconstitutional.
So back to the CEO that I am trying to call. Presumably Alexander would apply to Rule 7.3. Arguably, the application of Alexander would be, (1) that my commercial speech is protected by the First Amendment; and (2) that New York has an interest in protecting the unsophisticated tort victim; but (3) Rule 7.3 is arguably so broadly written that it is unreasonably infringing my First Amendment rights unnecessarily. The argument would be that the Rules could easily incorporate a distinction between the solicitation of individuals or for certain kinds of representation where the possibility of abuse is relatively high (i.e. family law, personal injury claims, elder law), and therefore the rule could easily be tailored to fit the danger.
The Bar has a very strong interest in developing a more narrowly tailored rule here. While attorneys are prohibited in many circumstances from informing potential clients about the services that they provide and the relevant legal issues, the massive “consulting” industry is not. The result is that attorneys lose work, and businesses and nonprofits are intentionally or unintentionally misled by management and transactional consultants who have only a limited understanding of the legal issues involved in their work. From what I have seen, this phenomenon is growing and will continue to grow to the detriment of clients and the economic interests of the Bar.
In short, it is time to revisit the restrictions imposed on attorney marketing and make sure that they are only so broad as necessary to combat any potential harm.